{"responseHeader":{"status":0,"QTime":3,"params":{"q":"{!q.op=AND}id:\"1130752\"","hl":"true","hl.simple.post":"","hl.fragsize":"5000","fq":"!embargo_tdt:[NOW TO *]","hl.fl":"ocr_t","hl.method":"unified","wt":"json","hl.simple.pre":""}},"response":{"numFound":1,"start":0,"docs":[{"thumb_s":"/8d/35/8d350973716f6bf699639273c8039a6537596e1f.jpg","source_t":"Original Book: Water Rights Laws Vol. 1","oldid_t":"wwdl_books 9206","setname_s":"wwdl_books","restricted_i":0,"format_t":"image/jpeg","identifier_t":"619-UUM-WRights1_page 583.jpg","modified_tdt":"2005-12-21T00:00:00Z","file_s":"/16/83/16836be1684ee0ebcf9e97cb34692065aaf61c7f.jpg","title_t":"page 583","ocr_t":"INCHOATE APPROPRIATIVE RIGHT 583 appropriator on the main stream below, rests upon the junior claimant. Several decades later, this court reaffirmed the principle, stating that on the issue of whether water is or is not tributary to a stream the burden is upon the party who asserts that it is not tributary-not on the one who asserts that it is. \"The natural presumption is, that all flowing water finds its way to a stream.\"709 (4) Whether the alleged upstream interference occurs on the main stream or on a tributary, the affirmative defense of the junior diversion must show that under all the surrounding conditions it does not adversely affect the senior's receipt of the full appropriation to which he is entitled. This might include a showing that the full quantity of water was received despite the upstream taking; or that the runoff was slight and the streambed sufficiently dry to absorb the entire flow enroute.710 Under some circumstances, the burden rests upon the upstream junior appropriator to show that neither the surface flow nor underflow, if uninterrupted, would reach the senior's point of diversion.711 (5) In Irion v. Hyde, the Montana Supreme Court held it to be \"well settled that a subsequent appropriator attempting to justify his diversion has the burden of proving that it does not injure prior appropriators.\"712 The result of the junior appropriator's actually making the required strong affirmative showing appears in two other cases decided by this court, as follows: When the evidence given by the upstream junior appropriator tends to show that the waters of Stream A would not, even if uninterrupted, reach Stream B on which senior headgates are located, this junior appropriator whose diversion is located on Stream A is prima facie entitled to make use of the water if such use does not interfere with the use by senior appropriators of the natural flow in Stream B. The burden then is upon the latter to show that, if unin- terrupted, the waters of Stream A would reach Stream B by a defined channel either on the surface or in the ground, and that the junior's appropriation of it diminishes the volume of water flowing in Stream B.713 INCHOATE APPROPRIATIVE RIGHT Nature and Extent of the Right In chapter 7, under \"Definitions,\" appears the following: Inchoate appropriative right is an incomplete appropriative right in good standing. It comes into being at the taking of the first step provided by law for acquisition of an appropriative right. It remains in good standing so long as the requirements of law are being fulfilled. And it matures into an appropriative right on completion of the last step provided by law. 709DeHaas v. Benesch, 116 Colo. 344, 350-351, 181 Pac. (2d) 453 (1947). 710Irion v. Hyde, 110 Mont. 570, 584, 105 Pac. (2d) 666 (1940). 111 Neil v. Hyde, 32 Idaho 576, 586, 186 Pac. 710 (1919); Jackson v. Cowan, 33 Idaho 525. 528. 196 Pac. 216 (1921). ™Irion v.Hyde, 110 Mont. 570, 581, 105 Pac. (2d) 666 (1940). li3Ryan v. Quinlan, 45 Mont. 521, 531-532, 124 Pac. 512 (1912); Loyning v.Rankin, 118 Mont. 235, 249, 165 Pac. (2d) 1006 (1946).","id":1130752,"created_tdt":"2005-12-21T00:00:00Z","parent_i":1130820,"_version_":1642982412108431361}]},"highlighting":{"1130752":{"ocr_t":[]}}}